RESTORE 

GREEN  HARBOR 


MARSHFIELD,  MASS. 


HOW  TO  DO  IT 


HISTORY  OF  THE   HARBOR 


1908 


PLYMOUTH, 
THE     MEMORIAL     PRESS. 

1'JOS. 


VCSB  LIBRARY 


RESTORE 

GREEN  HARBOR 


MARSHFIELD,  MASS. 


HOW  TO  DO  IT 


HISTORY  OF  THE  HARBOR 

7908 


OFFICERS. 

T.  B.  BLACKMAX,  President. 

STEPHEX  M.  HATCH,  Vice  President. 

C.  W.  MAGLATHLIX,  Secretary  and  Treasurer. 


GREEN  HARBOR 


Green  Harbor  is  situated  in  the  town  of  Marshfield,  county  of 
Plymouth,  about  eighteen  miles  southward  from  Minot's  Light. 

It  is  first  mentioned  by  Sir  Francis  Drake  in  his  voyages,  ( See 
volume  entitled  Drake's  shores  and  cost  of  New  England)  late 
in  the  sixteenth  century,  and  in  the  Old  Colony  Records  as 
early  as  1633. 

A  settlement  of  the  colonists,  as  early  as  1638,  was  made  near 
the  locality  in  which  Green  Harbor  village  now  is,  since  which 
date,  at  least,  the  place  has  been  referred  to  as  Green  Harbor. 

This  harbor  is  well  sheltered;  the  entrance  is  under  the  lee 
of  Branch's  island,  south  of  Brant  Rock  village  and  connected 
therewith,  the  most  southerly  part  of  which  is  Blue  Fish  rock, 
which  rises  to  a  considerable  height  above  the  level  of  high  water 
at  the  entrance  of  the  harbor,  forming  a  natural  breakwater,  and 
an  ample  protection  against  northerly  and  easterly  storms,  which 
are  the  most  dangeroiis.  There  was  complete  and  ample  shelter 
within  this  harbor. 

THE   QUESTION   OF   THE  RESTORATION   OF 
GREEN  HARBOR. 

The  Green  Harbor  dike  in  Marshfield,  Plymouth  County,  was 
constructed  under  the  following  Act  of  1871. 
An  Act  for  the  Improvement  of  Green  Harbor  Marsh  in  the 

Town  of  Marshfield,  and  far  other  Purposes. 
Be  it  enacted,  etc.,  as  follows : 

Section  1. — The  proprietors  of  Green  Harbor  marsh,  in  the 
town  of  Marshfield,  are  authorized  to  erect  a  dam  and  dikes  across 
Green  Harbor  river,  at  or  near  and  not  above  Turkey  Point,  so 
called,  with  one  or  more  sluice-ways  and  gates,  for  the  purpose 
of  draining  Green  Harbor  marsh,  and  improving  the  same,  and 


— 4 — 

preventing  flowage  from  the  sea;  said  dam,  dikes  and  improve- 
ments to  be  made  under  the  authority  of  commissioners  to  be  ap- 
pointed in  the  manner  provided  in  the  one  hundred  and  forty- 
eighth  chapter  of  the  General  Statutes,  with  all  the  powers  and 
subject  to  all  the  duties  required  or  allowed  by  said  chapter :  pro- 
vided, that  not  more  than  twenty  of  the  proprietors  shall  be  re- 
quired to  petition  the  superior  court  for  the  appointment  of  said 
commissioners :  and  it  shall  be  the  duty  of  said  commissioners  to 
construct  fish-ways  in  said  dam  if  required,  and  in  the  manner 
required  by  the  commissioners  of  fisheries  of  the  Commonwealth, 
and  to  make  return  of  the  same  to  said  court ;  of  all  which  pro- 
ceedings said  court  shall  have  jurisdiction  as  fully  as  if  provided 
in  said  chapter. 

Section  2.  For  the  purpose  of  cultivating  and  improving  said 
marsh,  maintaining  said  dam,  and  repairing  the  gates,  sluice- 
ways and  other  improvements,  and  the  removal  of  any  obstruc- 
tions in  the  channels  of  said  marsh,  which  may  thereafter  accum- 
ulate, and  for  conducting  the  fisheries  at  and  about  said  dam 
which  may  have  been  introduced  by  them,  the  said  proprietors 
may  manage  their  affairs  as  proprietors  of  general  fields,  and  as 
such  shall  have  all  the  powers  and  be  subject  to  all  the  duties 
and  liabilities  conferred  and  imposed  on  the  proprietors  of  gener- 
al fields  by  the  sixty-seventh  chapter  of  the  General  Statutes,  and 
may  include  in  their  acts  the  introduction  and  propagation  of 
herrings,  alewives  and  other  fishes. 

Section  3.  The  count}'  commissioners  of  the  county  of  Plym- 
outh, in  the  execution  of  the  powers  granted  them  by  chapter 
twenty-six  of  the  laws  of  the  year  eighteen  hundred  and  seventy, 
shall  have  authority  to  contract  with  the  commissioners  who  may 
be  appointed  by  the  superior  court,  for  the  erection  of  a  highway, 
bridge  and  dam.  without  a  draw,  at  the  joint  expense  of  the  town 
of  Marshfield  and  the  county  of  Plymouth,  and  of  said  proprie- 
tors, or  any  of  them:  prorii/i'il.  howfrrr.  that  said  dam,  bridge 
and  highway,  whether  located  separately  or  touvtlu-r.  shall  be  sub- 
ject to  the  provisions  of  section  four,  chapter  one  hundred  and 


forty-nine  of  the  acts  of  the  year  eighteen  hundred  and  sixty-six. 

Section  4.  Should  shoaling  take  place  above  the  level  of  mean 
low  water  in  the  channel  of  Green  Harbor  river,  and  its  ap- 
proaches below  the  dam  and  dikes  in  consequence  of  the  construc- 
tion of  said  dam  and  dikes,  said  shoaling  shall  be  removed  by  the 
proprietors  of  Green  Harbor  marsh,  under  the  direction  and  to 
the  acceptance  of  the  board  of  Harbor  Commissioners.  And  if 
the  proprietors  of  said  marsh  shall  fail  to  remove  said  obstruc- 
tions for  six  months  after  due  notice  from  said  commissioners, 
then  said  commissioners  shall  cause  the  obstructions  to  be  re- 
moved at  the  expense  of  the  proprietors  of  said  marsh,  and  said 
proprietors  shall  be  liable  to  the  Commonwealth  for  the  same 
in  an  action  of  contract  and  the  non-joinder  of  any  party  or 
parties  defending  shall  not  defeat  the  same. 

Approved  May  17,  1871. 

Almost  immediately  after  the  construction  of  the  dike  shoaling 
began  to  appear.  It  had  increased  to  such  an  extent  in  1876  as 
to  occasion  the  sending  of  a  petition  to  the  Board  of  Land  and 
Harbor  Commissioners  for  the  removal  of  the  shoaling,  as  pro- 
vided in  Section  4  of  the  foregoing  Act.  The  Harbor  and  Land 
Commissioners,  by  notice  dated  September  13th,  1876,  demand- 
ed the  removal  of  the  shoaling,  as  appears  by  the  following  copy 
of  such  notice. 

COMMONWEALTH    OP   MASSACHUSETTS, 

Harbor  Commissioners'  Office, 

8  Pemberton  Square. 

Boston,  Sept.  11,  1876. 

To  the  Proprietors  of  Green  Harbor  Marsh,  mentioned  in  Sec- 
tion Four  of  Chapter  Three  Hundred  and  Three  of  the  Acts 
of  the  Year  Eighteen  Hundred  and  Seventy-one. 
Whereas  the  proprietors  of  Green  Harbor  Marsh,  in  the  town 
of  Marshneld,  were,  by  the  provisions  of  chapter  303  of  the  Acts 
of  the  year  1871,  authorized  to  erect  a  dam  and  dikes  across 


Green  Harbor  River,  at  or  near  and  not  above  Turkey  Point,  so 
called,  with  one  or  more  sluice-ways  and  gates,  for  the  purpose 
of  draining  Green  Harbor  Marsh,  and  improving  the  same,  and 
preventing  flowage  from  the  sea ;  and 

Whereas  the  said  proprietors  did,  under  the  authority  of  the 
said  Act,  erect  a  dam  and  dikes  across  said  Green  Harbor  River, 
at  the  place  and  for  the  purposes  contemplated  and  provided  for 
in  said  Act  ;  and 

Whereas,  by  the  fourth  section  of  the  said  Act,  it  was  pro- 
vided, that  should  shoaling  take  place  above  the  level  of  mean 
low  water  in  the  channel  of  Green.  Harbor  River  and  its  ap- 
proaches below  the  dam  and  dikes,  in  consequence  of  the  con- 
struction of  said  dam  and  dikes,  said  shoaling  shall  be  removed 
by  the  proprietors  at  Green  Harbor  Marsh,  under  the  direction 
and  to  the  acceptance  of  the  Board  of  Harbor  Commissioners; 
and 

Whereas  the  undersigned,  the  Harbor  Commissioners,  mention- 
ed in  and  intended  by  said  Act.  upon  a  full  hearing,  and  an  in- 
spection and  examination  of  said  dam  and  dikes  and  said  river,  to 
find  and  determine,  that  shoaling  has  taken  place  above  the  level 
of  mean  low  water  in  the  channel  of  said  Green  Harbor  River 
and  its  approaches,  below  the  dam  and  dikes  erected  as  aforesaid, 
in  consequence  of  the  construction  of  said  dam  and  dikes ; 

Now,  therefore,  you  are  hereby  notified  and  required  to  remove 
said  shoaling  and  obstructions  from  the  channel  of  Green  Har- 
bor River  and  its  approaches,  and,  in  doing  so,  you  will  be  gov- 
erned by  the  following  directions,  to  wit : — 

The  obstructions  of  sands  above  the  level  of  mean  low  water 
lying  within  the  following  prescribed  lines,  shall  be  removed : 

The  easterly  and  northerly  line  shall  begin  at  a  point  in  the 
line  of  mean  low  water,  on  the  southerly  side  of  said  river,  about 
midway  between  the  easterly  and  westerly  high  water  shores 
thereof,  and  distant  about  300  feet  southerly  from  the  southerly 
point  of  the  marsh  island  next  above  it,  and  shall  follow  the  gen- 
eral course  of  the  present  low  water  channel  south-easterly  to  the 


— 7— 

foot  of  the  strand,  or  bank  left  bare  at  low  water,  on  the  easterly 
side  of  said  river,,  distant  80  feet  from  a  salient  point  in  the  high 
water  line  thereof;  thence  following  the  general  curve  of  the 
shore  along  the  foot  of  the  strand,  in  a  southerly,  south-westerly 
and  south-easterly  direction,  around  the  point  of  beach  which 
forms  the  south-easterly  point,  or  headland,  of  Green  Harbor,  at 
distances  varying  from  50  to  80  feet  from  the  high  water  line  of 
said  point  of  beach;  thence,  still  following  the  general  trend  of 
the  foot  of  the  strand,  at  distances  varying  from  160,  150,  230, 
320,  and  330  feet  (at  Bluefish  Rock)  from  the  high  water  line, 
to  the  low  water  line  of  the  main  shore.  The  westerly  and 
southerly  line  shall  run  from  the  point  of  beginning,  in  the  low 
water  line  of  said  Green  Harbor,  parallel  to  the  above  described 
easterly  and  northerly  line,  and  distant  from  it  100  feet  for  a 
distance  of  1,550  feet;  thence  the  line  shall  run  straight  in  a 
southerly  and  little  easterly  direction,  for  a  distance  of  about  700 
feet,  to  a  point  in  the  low  water  line  of  the  main  shore,  distant 
500  feet  south-westerly  from  the  end  of  the  first-described  line. 

The  space  inclosed  within  the  above  described  lines  is  shown  in 
red  color  upon  a  plan  of  said  harbor  on  file  in  the  office  of  this 
Board,  entitled  "A  Map  of  Green  Harbor,  Mass.,  showing  the 
channel  and  its  approaches  at  mean  low  water." 

Or.  an  excavation  in  the  channel  of  said  river  and  its  approach- 
es to  the  level  of  mean  low  water,  having  a  width  of  not  less  than 
100  feet  from  the  harbor  basin  to  past  the  headlands  of  the  same, 
and  having  a  width  of  not  less  than  500  feet  at  the  low  water  line 
of  the  main  shore,  may  be  made,  following  any  other  course  from 
the  point  of  beginning  before  mentioned  to  the  sea,  satisfactory 
to  this  Board. 

The  level  of  mean  low  water  is  referred  to  the  following  de- 
scribed bench  marks : 

Bench  mark  A  is  situated  on  the  top  of  the  smaller  and  more 
northerly  of  two  boulders  in  the  marsh,  situated  70  feet  X.  X.  W. 
from  a  bridge  over  a  creek  in  said  marsh,  and  is  also  245  feet  S. 
S.  E.  from  the  chimney  of  Mr.  Thomas  Keith's  house,  and  is 


—8— 

marked  by  two  cuts  in  the  rock  thus,     A       The  height  of  this 
bench  mark  above  the  level  of  mean  low  water,  is  10.740  feet. 

Bench  mark  B  is  situated  on  the  top  of  Bluefish  Bock,  74  feet 
N.  E.  of  the  highest  point  of  said  rock,  and  is  marked  by  three 
cuts  in  the  rock,  thus,  ^  The  height  of  this  bench  mark  above 
the  level  of  mean  low  water,  is  18.260  feet. 

JOSIAH  QUINCY, 

F.  W.  LINCOLN, 

J.  N.  MARSHALL, 

W.  T.  GEAMMER, 

ALBERT  MASON, 

Harbor  Commissioners. 


The  proprietors  of  the  marsh  neglected,  and  refused  to  remove, 
the  shoaling,  which  has  since  continued  to  accumulate,  until  now 
the  harbor,  once  a  safe  harbor  of  refuge  for  all  vessels  of  light 
draught  upon  this  coast,  at  times  made  dangerous  by  storms,  is 
practically  destroyed. 

THE  IMPORTANCE  OF  THE  HARBOR. 

Green  Harbor  as  a  harbor  of  refuge  for  vessels  of  light  draught 

cannot  be  over  estimated.       Even  vessels  drawing  fourteen  feet 

of  water  found  it  a  safe  refuge  in  bad  weather,  as  will  appear  by 

the  letter  annexed,  viz:  and  by  other  facts  as  shown  in  this 

pamphlet. 

Boston,  March  20,  1877, 
Harris,  Esqr. : — 

In  reply  to  your  inquiries  as  to  when  the  brig  "Kineo"  was 
taken  into  Green  Harbor,  Marshfield.  We  took  her  in  Novem- 
ber 18th,  1857.  Her  draught  at  that  time,  by  measurement,  was 
fourteen  [14]  feet.  We  anchored  in  Blue  Fish  Cove,  until  we 
had  water  enough  to  take  her  in  on.  After  we  were  in  we  an- 
chored and  found,  by  measurement,  nine  [9]  feet  of  water  at  low 
tide.  We  towed  her  out  with  steamer  "Neptune,"  November 
21st,  1857,  drawing  eleven  [11]  feet  of  water. 

Yours,  etc., 

M.  B.  TOWER. 


THE   FISHERIES. 

Since  ancient  colonial  times  the  fishing  industry  has  been  pur- 
sued by  the  residents  of  the  villages  surrounding  Green  Harbor 
as  their  means  of  livelihood.  A  packet  formerly  made  stated 
trips  between  Green  Harbor  and  Boston,  thus  delivering  the  pro- 
duct of  the  industry  of  the  villages  to  the  market  for  distribution. 
The  industry  was  carried  on  by  means  of  small  vessels,  called 
"smacks,"  drawing  from  nine  to  ten  feet  of  water,  which  could 
beat  into  and  out  of  the  harbor,  at  two-thirds  tide,  the  mouth  of 
which  was  sufficient  in  width  and  depth  to  allow  of  this.  Large 
quantities  of  lobsters  were  caught  off  the  coast  by  these  fishermen, 
and  off  shore  cod-fishing  was  also  profitably  pursued.  This  bus- 
iness could  be  carried  on  with  slight  hazard  as  compared  with  the 
dangers  the  fishermen  are  now  compelled  to  brave  by  reason  of 
the  fact  that,  while  they  could  pursue  their  calling  in  boats  of 
greater  draught,  and  with  the  harbor  at  all  times  open  as  a  re- 
fuge for  them  where  they  could  land  without  danger,  and  where 
their  boats  were  safe  from  storms,  now  they  are  compelled  to 
keep  their  boats  outside  the  harbor;  and  they  find  it  closed  to 
them,  except  for  about  four  hours  each  day,  as  at  other  time* 
nothing  but  a  light  dory  can  make  the  harbor  in  safety. 

THE  HARBOR  FOR  GENERAL  PURPOSES. 
Prior  to  the  construction  of  the  dike  a  lumber  yard  was  estab- 
lished inside  the  harbor,  the  stock  for  which  was  transported  by 
means  of  schooners  and  delivered  from  them  at  the  yard.  This 
business  was  destroyed  by  reason  of  the  shoaling  of  the  harbor, 
which  prevented  the  delivery  of  lumber  by  the  method  as  there- 
tofore. The  river  'above  the  harbor,  beyond  the  point  where  the 
dike  now  stands,  for  more  than  a  mile  was  navigable,  and  lum- 
ber-laden schooners  have  transported  the  material  for  buildings 
in  Marshfield,  even  beyond  this  limit.  Daniel  Webster,  whose 
home  bordered  upon  the  river,  could  sail  from  his  estate  down 
this  river  through  the  harbor  to  the  sea ;  and  he  often  said  that 


it  was  the  beauty  of  this  river  and  harbor  which  induced  him  to 
make  his  home  in  Marshfield.  The  dock,  known  as  "Webster 
Dock,"  at  the  harbor  was  used  as  the  landing  place  for  pleasure 
boats  and  other  craft  from  Boston  and  elsewhere,  while  opposite 
this  dock  the  steam  revenue  cutter,  bearing  the  representatives  of 
the  government,  was  moored  at  the  time  of  the  obsequies  of  Mr. 
Webster.  Xature  has  not  changed  this  harbor.  The  construc- 
tion of  the  dike  has  prevented  the  natural  ebb  and  flow  of  the  vol- 
ume of  water  m>< •essary  to  keep  the  channel  of  the  harbor  clear. 

SUMMER  RESIDENTS  AXD  THE  HARBOR. 

About  fifty  years  ago  the  construction  of  summer  cottages  be- 
gan in  one  of  the  villages  which  surround  this  harbor,  called 
Brant  Rock.  The  locality  so  commended  itself  as  a  pleasure 
resort,  and  as  a  desirable  place  for  the  establishment  of  summer 
homes,  that  a  large  colony  of  cottages  has  been  established  in  sev- 
eral villages  bordering  on  this  harbor.  To  such  an  extent  has 
the  natural  deA'elopment  of  this  locality  been  carried  that  the 
South  Ward  of  the  town,  in  which  these  villages  are  included, 
has  shown  a  growth  many  times  larger  than  any  other  locality  in 
the  town,  and,  today  pays  a  larger  proportion  of  the  tax  levied  by 
the  toAvn.  than  either  of  the  other  two  wards  of  the  town.  The 
increase  of  valuation  has  occurred  in  these'  villages  largely  more 
than  elsewhere  in  the  town.  The  prosperity  of  Marshfield  is 
largely  due  to  the  importance  of  this  harbor  and  the  surrounding 
villages. 

YACHTING  INTERESTS  AND  THE  REMO-YAL  OK  THE 

DIKE. 

The  great  amount  of  capital  invested  in  the  legion  of  yachts 
and  pleasure  craft  which,  during  the  summer  season,  cruise  along 
our  coast,  makes  the  yachting  interest  one  of  great  importance  to 
the  commonwealth,  independent  of  the  pleasure  which  it  affords 
to  our  people.  As  a  recreation,  yachting  claims  a  phu-c  in  Amer- 


— II — 

lean  sports  second  to  none  other.  It  is,  however,  a  pastime  to 
which  are  incident  dangers,  unless  those  who  engage  in  it  can. 
find  always  within  easy  reach  a  safe  harbor  in  which  they  may 
have  shelter  from  sudden  storms.  Such  Green  Harbor  used  to 
be,  and  would  be  now  were  but  the  tides  permitted  to  ebb  and 
flow  within  it,  as  in  former  years,  prior  to  the  construction  of 
the  dike  which  has  excluded  the  natural  flow  of  the  tides  over  an 
area  of  about  fifteen  hundred  acres  of  marsh,  and  in  creeks,  and 
river  beds  once  navigable. 

PROPERTY  INTERESTS  INVOLVED. 

The  removal  of  the  dike  as  contemplated  by  House  Bill  Num- 
ber 769, — the  bill  for  which  the  Green  Harbor  Fishermen's  Asso- 
ciation asks  the  favorable  consideration  of  the  legislature — would 
cause  the  tides  to  flow  over  marsh  lands  which,  before  the  dike 
was  constructed,  were  assessed  for  about  twelve  dollars  per  acre. 
The  assessment  of  1895  shows  an  average  valuation  ,of  about 
twenty-one  and  fifty  one-hundredths  dollars  per  acre,  and  in 
Avhich  is  included  the  valuation  of  all  the  improvements.  It  is 
estimated  that  of  the  area  of  the  marsh,  nearly  fifteen 
hundred  acres,  not  exceeding  one-third  now  yields  a 
crop.  And  of  this,  little  is  devoted  to  any  other  use  than 
the  raising  of  grass.  Opinions  differ  as  to  the  quality  of  the 
products,  such  as  they  are,  which  are  secured  from  these  lands ; 
but  we  fail  to  find  in  the  records  of  the  Marshfield  Agricultural 
Society,  whose  buildings  are  in  sight  from  the  marsh,  that  its 
products  have  won  distinction  in  competition  with  the  pro- 
ducts of  the  soil  in  other  parts  of  the  town.  And,  it  is  the 
opinion  of  many  that  each  year  shows  a  less  area  of  these  marsh- 
es under  cultivation.  It  is  also  fair  to  assume  that  their  cultiva- 
tion does  not  yield  an  adequate  return.  That  portion  of  the 
marsh,— about  two-thirds  in  extent— has  been  permitted  to  grow- 
up  with  brush  and  birches  in  many  places  near  the  upland,  and 
to  remain  as  barren  fields  elsewhere. 


12 

THE  POSITION  OF  THE  ADVOCATES  OF  THE 

REMOVAL  OF  THE  DIKE. 

The  advocates  of  the  removal  of  the  dike  feel  that  an  experi- 
ment was  permitted  by  the  Legislature  under  the  Act  of  1871 
(Chapter  303),  but  only  on  condition  that  those  who  sought  ben- 
efit under  the  provisions  of  that  Act  should  not  permit  any  in- 
jury to  the  harbor,  which,  it  is  submitted,  is  of  much  more  im- 
portance to  commerce  than  is  the  marsh*  to  agriculture.  They 
were  permitted  to  exclude  the  tides,  but  were  required  to  remove 
the  shoaling,  which  occurred  as  the  natural,  and  foreseen,  result 
of  the  construction  of  the  dike.  All  that  is  asked  is  that,  hav- 
ing tried  the  experiment  involved  in  the  construction  of  the  dike ; 
having  inflicted  the  injury  to  the  harbor  occasioned  by  the  shoal- 
ing, and,  having  refused  to  comply  with  the  provisions  in  the  act, 
under  which  they  hoped  to  benefit,  the  marsh  proprietors  should 
not  be  longer  permitted  to  maintain  their  useless  obstruction  to 
navigation,  this  menace  to  the  existence  of  a  harbor  of  so  great 
importance,  not  only  to  the  locality  where  situated,  but  to  the 
whole  people  of  the  Commonwealth. 

THE  POSITION  OF  THE  DIKE  SUPPORTERS. 
The  supporters  of  this  nuisance  admit  that  the  shoaling  has 
taken  place  in  consequence  of  the  construction  of  the  dike.  Few 
among  them  now  can  maintain  that  the  marsh  and  its  products 
are  worth  the  cost  of  cultivation ;  and  of  those  who  formerly  en- 
deavored to  cultivate  their  marsh  land  the  number  is  less  who  per- 
sist in  the  effort.  They  admit  the  obligations  imposed  by  Sec- 
tion 4  of  the  Act  of  1871,  Chapter  303,  to  remove  the  shoaling. 
They  refuse  to  comply  with  its  terms,  and  they  ask  in  response 
to  petitions  and  entreaties : 

"What  are  you  going  to  do  about  it?" 

HISTORY  OF  GREEN  HARBOR. 

Having  lived  on  the  banks  of  this  harbor  for  more  than  fifty 
years,  have  necessarily  seen  something  of  its  importance  and  \al- 


—13— 

ue,  and  with  your  consent  I  wish  to  place  before  the  community 
some  of  the  vessels  who  have  from  time  to  time  found  shelter  in 
this  harbor.  In  1857,  Nov.  21.  the  brig  Kineo,  bound  for  Wash- 
ington loaded  with  granite,  drawing  14  feet  of  water  and  leaking 
badly,  was  towed  into  Green  Harbor  by  two  sloops,  each  drawing 
eight  feet  of  water,  under  the  command  of  Capt.  Moses  B.  Tow- 
er of  East  Boston  and  vessel  and  cargo  saved.  In  this  I  render- 
ed personal  assistance,  and  we  then  had  water  sufficient  for  all 
three  vessels  to  float  at  low  water.  In  July  and  August  of  1861 
the  steamer  Argo  commanded  by  Capt.  Davidson,  made  three 
trips  to  this  harbor,  bringing  at  one  time  more  than  500  people, 
at  other  times  from  200  to  400  and  these  trips  were  instrumental 
in  the  settlement  of  these  villages.  On  the  3d  of  September  in 
1862  brig  Pilot  Fish  was  run  into  by  a  coal  schooner  off  Cohasset, 
in  a  gale  and  thrown  on  her  beam  ends;  the  day  following  she 
was  picked  up  by  the  fishermen  of  Green  Harbor.  She  was 
twenty  feet  beam  and  hatches  under  water,  and  in  this  condition 
was  towed  into  this  harbor  and  vessel  and  cargo  saved.  Her 
captain  was  lost,  crew  were  saved.  She  was  bound  for  the  West 
Indies  with  an  assorted  cargo.  In  1864  schooner  Daniel  Web- 
ster, 108  tons  burden,  from  New  London,  and  schooner  Perfect, 
45  tons,  belonging  to  Deer  Isle,  took  refuge  in  this  harbor.  In 
August,  1865,  a  fleet  of  thirteen  yachts  from  Boston  and  vicin- 
ity took  refuge  from  a  southeast  storm  in  this  harbor.  1866  the 
Patuxet  U.  S.  revenue  cutter,  Capt.  Fanger,  with  Capt.  Doloer  as 
associate,  she  was  400  tons  burden,  drawing  12  feet  and  made 
Green  Harbor.  In  the  winter  of  1868  the  schooner  Bloomer 
from  Xova  Scotia,  made  this  harbor  in  a  northeast  snow  storm, 
and  vessel  and  crew  were  saved.  In  1.881,  April  the  16th, 
schooner  Ganges  from  Ellsworth,  94  tons,  was  driven  within  a 
few  rods  of  this  harbor,  and  if  the  harbor  had  been  as  it  was  in 
1870,  this  vessel  could  have  sailed  in  and  been  saved,  but  was 
obliged  to  go  ashore  and  was  a  total  loss. 

These  are  a  few  of  the  many  instances  wherein  the  harbor  has 
afforded  friendlv  shelter  to  the  storm  tossed  mariner  since  1857. 


Through  the  influence  <>t'  dike  proprietors  the  public  have  hern 
robbed  of  one  of  the  best  harbors  along  these  shores,  and  still  it 
is  as-erted  that  nobody  is  wronged  or  injured.  While  govern- 
ment is  doing  and  spend  ing  such  large  sums  of  money  to  estab- 
lish good  and  safe  harbors  it  seems  a  great  sacrifice  that  Green 
Harbor  should  be  destroyed  for  naught. 

T.  H.  BLACK  MAN. 

ABSTRACTS     OF     THE     OPINIONS     <»F     Till;     LATE 

DANIKL  WEBSTEIJ. 

As    given    before    the    Supreme    Court    of    the    United    States 

in  the  Dibbons  and  Ogden  case  of  New  York. 

on  Monopolies. 

But  in  this,  and  all  other  countries  where  there  is  a  written 
Constitution  designating  the  powers  and  the  duties  of  the  Legis- 
lative, as  well  as  of  the  other  departments  of  the  government,  an. 
act  of  the  Legislature  uuiv  be  void  as  being  against  the  Consti- 
tution. 

The  law  with  us  must  conform,  in  the  first  place  to  the  Con- 
stitution of  the  United  States,  and  then  to  the  subordinate 
Constitution  of  its  particular  state,  and  if  it  infringes  the  pro- 
vision, it  is  so  far  void.  The  courts  of  justice  have  a  right, 
and  are  in  duty  bound  to  bring  every  law  to  the  test  of  the 
Constitution,  and  to  regard  the  Constitution  of  the  United 
Stat<->.  and  then  of  their  own  state,  as  the  paramount  or  supn-me 
law,  to  which  every  inferior  or  derivative  power  and  regulation 
must  conform. 

The  Constitution  is  the  act  of  the  people,  speaking  in  their 
original  character  and  defining  the  permanent  conditions  of  the 
social  alliance,  and  there  can  be  no  doubt  on  the  point  with  us, 
that  every  act  of  the  Legislative  power,  contrary  to  the  true  intent 
and  meaning  of  the  Constitution,  is  absolutely  null  and  void. 

The  judicial  department  is  the  power  in  the  government  to 
determine  whether  a  statute  be  or  be  not  constitutional.  The 


—15— 

interpretation  or  construction  of  the  Constitution,  is  as  much  a 
judicial  act.  and  requires  the  exercise  of  the  same  legal  dis- 
cretion, as  the  interpretation  or  construction  of  a  law.  To  con- 
tend that  the  courts  of  justice  must  obev  the  requisitions  of  an 
act  of  the  Legislature,  when  it  appears  to  them  to  have  been 
passed  in  violation  of  the  Constitution,  would  be  to  contend  that 
the  law  was  superior  to  the  Constitution,  and  that  the  judges 
had  no  right  to  look  into  it,  and  regard  it  as  the  paramount  law. 
It  would  be  rendering  the  power  of  the  agent  greater  than  that 
of  his  principals  and  be  declaring  that  the  will  of  only  one 
concurrent  and  co-ordinate  department  of  the  subordinate  auth- 
orities under  the  Constitution,  was  absolute  over  the  other  de- 
partments, and  competent  to  control,  according  to  its  own  will 
and  pleasure,  the  whole  fabric  of  the  government,  and  the 
fundamental  laws  on  which  it  rested. 

When  Mr.  Webster  visited  Savannah,  in  1847,  Honorable  J. 
M.  Wayne,  one  of  the  judges  of  the  Supreme  Court,  welcomed 
him.  His  address  contains  the  following  paragraph,  illustra- 
tive of  Mr.  Webster's  influence  before  the  most  august  tribunal 
in  the  United  States: 

When  the  late  Mr.  Thomas  Gibbon  determined  to  hazard  a 
large  part  of  his  fortune  in  testing  the  constitutionality  of  the 
laws  of  Xow  York,  limiting  the  navigation  of  the  Avaters  of  that 
State  to  steamers  belonging  to  a. company,  his  own  interest  was 
not  so  much  concerned  as  that  of  the  right  of  every  citizen  to  use 
a  coasting  license  upon  the  waters  of  the  United  States,  in 
whatever  way  his  vessel  was  propelled.  It  was  a  sound  view  of 
the  law,  but  not  broad  enough  for  the  occasion.  It  is  not  un- 
likely that  the  case  would  have  been  decided  upon  it,  if  you  had 
not  insisted  that  it  should  be  put  upon  the  broader  constitutional 
grounds  oE  commerce  and  navigation.  The  court  felt  the  ap- 
plication and  force  of  your  reasoning,  and  it  made  a  decision  re- 
leasing every  creek  and  harbor,  river  and  bay  in  our  country 
from  the  interference  of  monopolies,  which  had  already  provoked 
unfriendly  legislation  between  some  of  the  States. 


Every  man  in  the  country  was  personally  interested  in  a  de- 
cision which  might  have  been  in  accordance  with  the  partial 
views  of  the  State  legislation,  had  not  Webster's  logic  demolished 
the  temple  of  their  idolatry. 

GREEN"  vs.  BIDDLE. 
American  Law  by  James  Kent, 

Pages  418  and  419,  Sec.  4. 

It  was  observed  by  the  Court,  that  the  objection  to  a  law,  on 
the  ground  of  its  impairing  the  obligation  of  contracts  could  nev- 
er depend  upon  the  extent  of  the  change  which  the  law  ef- 
fects in  it.  Any  deviation  from  its  terms  by  postponing  or 
accelerating  the  period  of  performance  which  it  prescribes,  im- 
posing conditions  not  expressed  in  the  contract,  or  dispensing 
with  the  performance  of  those  which  are  expressed,  however 
minute  or  apparently  immaterial  in  their  effect  upon  the  con- 
tract, or  upon  any  part  or  parcel  of  it  impairs  its  obligation. 
To  deny  any  remedy  under  a  contract,  or  by  burdening  the  rem- 
edy with  new  conditions  and  restrictions,  making  it  useless,  or 
hardly  worth  pursuing,  is  equally  a  violation  of  the  Constitution. 

East  Bridgewater,  Mass.,  March  6,  1891. 
Dear  Sir: 

Yours  of  the  3d  hist,  is  at  hand.  The  case  of  the  Common- 
wealth vs.  C.  G.  Davis  et  al.  ought  not  to  be  dismissed,  but  it  is 
so  old  that  perhaps  you  will  not  feel  like  taking  it  up.  I  acted 
for  Attorney  General  Marston  and  argued  the  case  twice  in  print, 
but  it  was  found  that  some  of  the  parties  had  not  been  cited  in 
and  new  notice  issued.  By  the  time  this  had  been  done  Marston 
was  out  of  office  and  the  appropriation  had  been  covered  back 
into  the  Treasury.  Every  Attorney  General  since  has  talked 
about  asking  the  Legislature  for  a  new  appropriation,  but  none 
has  been  obtained.  I  worked  for  nothing  as  long  as  I  cared  to 
and  gave  up.  While  I  look  upon  the  performance  of  Davis  and 
his  confederates  in  building  a  dike  which  did  no  one  any  good, 
and  destroved  a  fine  little  harbor,  as  a  great  public  wrong  it  may 


—17— 

be  that  you  will  think  there  is  now  no  remedy.  The  Common- 
wealth granted  the  privilege  of  building  the  dike,  but  reserved 
the  right  to  compel  the  Company  to  keep  the  harbor  open. 
The  Commonwealth  'has  the  right  and  the  power  to  compel  the 
Company  to  remove  shoalings.  I  wish  you  would  look  the  case 
up,  read  the  pleadings  and  arguments,  and  form  your  own  opin- 
ion as  to  what  is  best  in  the  premises,  for  I  am  prejudiced  and 
hostile.  If  I  could  have  my  own  way  I  would  remove  the  dike 
and  allow  the  water  to  flow  naturally.  They  would  soon  make 
the  harbor  as  good  as  it  was  in  the  days  when  Daniel  Webster 
so  enjoyed  sailing  upon  its  waters.  Charles  G.  Davis  is  more 
responsible  for  the  wrong  than  any  other  man,  and  when  he 
represents  to  you  the  case  was  brought  merely  in  the  interest  of 
private  parties  he  does  not  state  the  whole  case.  It  is  true  that 
the  property  of  private  persons  was  taken  and  utterly  destroyed 
without  remuneration  by  the  Company,  but  the  rights  of  the 
public  were  also  destroyed.  A  fine,  safe,  snug  little  harbor  was 
ruthlessly  ruined. 

Under  the  contract  made  with  the  State  the  Company  was 
bound  to  remove  shoaling,  but  it  has  done  nothing,  and  the  har- 
bor is  now  utterly  worthless.  I  admit  the  existence  of  the  dike 
is  utterly  inconsistent  with  the  existence  of  a  harbor.  One  storm 
will  throw  into  the  harbor  more  sand  than  a  thousand  men  could 
remove  in  a  year,  but  take  away  the  dike  and  allow  the  waters 
to  flow  in  and  out  in  their  wonted  channel,  and  in  a  few  months 
Green  Harbor  would  become  a  "joy  forever,  if  not  a  thing  of 

beauty/' 

Yours  very  truly, 

B.  W.  HARBIS. 

Honorable  A.  E.  Pillsbury, 

Attorney  General, 
Boston,  Massachusetts. 


THE    SUPKIMni?    COCI.'T. 

Boston,  Feb.  7,  1908. 
T.  B.  Blackmail.  Ks.,.. 

Brant  Hock,  Mass. 
Dear  Sir: 

Your  letter  with  enclosures  was  duly  received.  1  will  go  be- 
fore the  committee  if  possible,  but  doubt  if  my  work  will  permit 
it.  You  may  quote  me  as  vigorously  as  you  please  in  favor  of 
the  measure. 

The  dyke  had  its  origin  in  a  fancy.  A  gentleman  who  made 
a  summer  trip  to  Holland,  came  home  with  his  head  full  of  the 
wonders  of  that  country.  He  forgot  that  we  had  a  good  deal  of 
land  here  that  is  above  high  water  mark  and  available  for  all 
purposes  for  which  dry  land  is  useful.  He  also  forgot  that  the 
harbors  are  few  and  necessary.  Green  Harbor  was  not  onlv  a 
beautiful  place,  but  it  was  useful  and  had  capacities  for  develop- 
ment. It  was  destroyed  in  wanton  disregard  of  the  obligations 
assumed  when  the  dyke  was  built.  When  the  dyke  proprietors 
found  it  was  a  physical  impossibility  to  prevent  shoaling  so  that 
they  could  not  keep  the  harbor  open,  they  hid  behind  the  fact  that 
their  charter  provided  no  penalty  for  failure  to  perform  these  du- 
ties and  clung  to  their  dyke.  The  harbor  commissioners  had 
power  to  remove  shoaling  at  the  expense  of  the  proprietors,  but 
had  no  power  to  remove  the  dyke.  This  the  harbor  commission- 
ers never  did  and  never  tried  to  do  as  they  found  it  impossible. 
The  dyke  has  therefore  remained  to  the  destruction  of  the  har- 
bor. The  practical  result  has  been  that  public  property,  to  wit, 
the  harbor,  has  been  taken  for  private  benefit  without  compensa- 
tion to  any  one.  In  addition  to  that,  private  rights,  to  wit,  the 
rights  of  the  harbor  by  shipping  and  fishing  interests,  have  also 
been  taken  without  compensation. 

As  a  boy  and  lad  I  used  to  go  to  Green  Harbor  and  "Cut  Eiv- 
er"  with  my  father  and  have  enjoyed  many  glorious  sails  in  and 
out  of  it.  As  a  young  man  I  watched  its  gradual  destruction 
with  anger  and  regret.  I  worked  with  my  father  to  prevent  and 


—19— 

to  right  this  wrong,  and  today  I  feel  as  strongly  as  ever  that  so 
long  as  that  dyke  stands  it  will  be  a  monument  of  injustice.  If 
there  had  been  any  compensating  benefit  to  any  one  I  might  feel 
less  hostile  to  it,  but  I  know  of  no  prosperous  Little  Holland  that 
has  grown  up  on  the  reclaimed  marshes,  and  I  do  know  that  the 
town  lias  lost  and  is  losing  many  times  what  benefit  has  accrued, 
and  that  the  general  public  has  lost  a  place  that  was  a  God-send 
to  thousands  as  a  health  and  pleasure  resort,  an  opportunity  to 
earn  a  living  for  many  worthy  men,  and  a  place  of  refuge  for  the 
storm-beaten  smaller  craft.  Let  the  tides  and  the  river  have 
their  way  and  all  this  will  come  back.  If  a  road  must  remain 
make  them  build  a  bridge,  but  in  any  event  there  ought  to  be  a 
hole  in  that  dyke  big  enough  to  let  the  river  and  the  marsh  re- 
sume their  sway. 

I  will  contribute  to  the  fireworks  on  the  day  our  Legislature 
rights  this  monumental  wrong. 

Yours  very  truly,. 

ROBERT    0.   HARRIS. 


Mr.  T.  B.  Blackman. 
My  dear  Sir: 

Hearing  of  your  laudable  efforts  for  restoration  of  Green  Har- 
bor, I  wish  to  say  I  have  been  a  summer  resident  of  Green  Har- 
bor for  the  past  nineteen  years,  and  during  this  time  I  have  had 
ample  opportunity  to  see  the  effect  of  the  dike  upon  our  harbor. 
In  a  few  years  the  basin  and  mouth  of  the  harbor  will  both  be 
practically  filled  if  things  go  on  as  at  present.  Our  harbor  is 
steadily  going  from  bad  to  worse,  and  its  only  hope  of  salvation 
is  to  have  the  current  of  water  restored  which,  before  the  dike  in- 
terfered with  the  natural  flow  of  the  river,  scoured  the  sand  away 
from  the  harbor's  mouth  and  kept  the  harbor  clear. 

The  opponents  of  the  proposition  to  remove  the  dike  are  the 
owners  of  the  so-called  "rescued"'  marsh  lands,  which  will  be 
flooded  on  the  dike's  removal.  These  owners  (or  at  least  some 
of  them,  for  there  are  those  among  them  who  are  willing  to  have 


the  dike  removed)  urge  that  it  is  hard  and  unjust  toward  them, 
after  they  have  built  the  dike  at  a  large  expense,  that  they  should 
be  obliged  to  submit  to  its  removal  and  the  consequent  flooding 
of  their  lands. 

Under  Sec.  4  of  the  act  under  which  the  proprietors  of  the 
Green  Harbor  marsh  were  permitted  to  build  the  dike,  they  are 
expressly  bound  to  remove  any  shoaling  that  may  occur  in  the 
harbor.  Moreover,  the  harbor  commissioners,  who  have  the  au- 
thority to  order  the  removal  of  such  shoaling,  have  issued  one 
such  order  to  the  marsh  proprietors,  and  they  have  paid  no  heed 
to  the  order.  The  harbor  commissioners  have  authority  to  re- 
move such  shoaling  at  the  expense  of  the  marsh  proprietors,  and 
yet  nothing  has  been  done.  Every  day,  therefore,  that  the  com- 
monwealth allows  the  harbor  to  remain  in  its  present  condition  it 
is  guilty  of  a  gross  breach  of  good  faith  toward  those  for  whose 
benefit  the  conti'act  with  the  marsh  owners  was  made. 

For  a  small  harbor  of  refuge,  and  for  sailboats  and  vessels  of 
small  draught,  no  harbor  in  this  region  is  naturally  better  or  more 
convenient  than  Green  Harbor.  Green  Harbor  is  near  two 
growing  summer  resorts,  Brant  Rock  and  Duxbury  Beach,  and  it 
would  be  a  wonderful  resort  for  sailboats  if  it  were  only  restored 
to  its  former  depth  so  that  it  would  be  accessible  at  all  tides.  If 
the  Cape  Cod  canal  is  dug,  Green  Harbor  will  be  of  increased  im- 
portance as  a  harbor  of  refuge  for  small  craft  sailing  between 
New  York  and  Boston.  In  a  word,  make  Green  Harbor  river 
what  it  should  be  by  removing  the  dike,  and  the  future  useful- 
ness of  the  harbor  is  something  that  admits  of  no  question. 

New  York,  Nov.  9.  R.  W.  G. 


The  Constitution  provides  Art.  14  Sect.  1. 

All  persons  born  or  naturalized  in  the  United  States,  and  sub- 
ject to  the  jurisdiction  thereof,  are  citizens  of  the  United  States, 
and  of  the  state  wherein  they  reside.  No  state  shall  make  or 
enforce  any  law  which  shall  abridge  the  privileges  or  immunities 
of  citizens  of  the  United  States;  nor  shall  any  state  deprive  any 


-21- 


person  of  life,  liberty  or  property,  without  due  process  of  law, 
nor  deny  to  any  person  within  its  jurisdiction  the  equal  protec- 
tion of  the  laws. 


A  few  extracts  from  the  rulings  of  the  Supreme  Court  as 
found  in  James  Kent  commentaries  on  American  law  of  the  gov- 
ernment and  constitutional  jurisprudence  of  the  United  States. 
(Part  II.,  Sect.  XIX.) 

The  Court  declared,  that  when  a  law  was  in  its  nature  a  con- 
tract, and  absolute  rights  have  vested  under  that  contract,  a  re- 
peal of  the  law  could  not  divest  those  rights,  nor  annihilate  or  im- 
pair the  title  so  acquired.  A  grant  was  a  contract  within  the 
meaning  of  the  constitution.  And  a  grant  is  a  contract  executed, 
and  a  party  is  always  estopped  by  his  own  grant.  A  party  cannot 
pronounce  his  own  deed  invalid,  whatever  cause  may  be  assigned 
for  its  invalidity,  and  though  that  party  be  the  legislature  of  a 
state.  A  grant  from  a  state  is  as  much  protected  by  the  opera- 
tion of  the  provision  of  the  constitution,  as  a  grant  from  one  in- 
dividual to  another ;  and  the  state  is  as  much  inhibited  from  im- 
pairing its  own  contracts,  or  a  contract  to  which  it  is  a  party,  as 
it  is  from  impairing  the  obligation  of  contracts  between  two  in- 
dividuals. 


HOUSE  XO.  769. 

Bill  accompanying  the  petition  (taken  from  the  files  of  last 
year)  of  Frank  A.  Drew  for  legislation  to  provide  for  the  re- 
moval of  a  dike  across  Green  Harbor  river  in  the  town  of  Marsh- 
field  and  for  the  construction  of  a  bridge  over  said  river.  Har- 
bors and  Public  Lands.  January  21. 

Com.monwea.lth  of  Massachusetts. 

In  the  Year  One  Thousand  Xine  Hundred  and  Eight. 

AX  ACT. 

Relative  to  the  Dike  in  Green  River  Harbor  in  Marshfield. 
Be  it  enacted  lij  the  Senate  and  House  of  Representatives 


22 

tn  General  Court  assembled,  and  Itij  the  authority  of  the  same, 
as  follows : 

Section  1.  The  board  of  harbor  and  land  commissioners  is 
hereby  authorized  and  directed,  at  an  expense  not  exceeding 
thirty-five  thousand  dollars,  to  cause  the  removal  of  two  hundred 
feet  or  more  of  the  dike  built  across  Green  river  in  the  town  of 
Marshfield,  and  to  build  a  bridge  over  the  gap  in  the  dike  so 
caused,  with  such 'piers  and  other  constructions  as  the  public 
convenience  may  require. 

Section  2.  The  said  board  may  take,  by  purchase  or  other- 
wise, on  behalf  of  the  Commonwealth,  any  lands  or  materials 
necessary  for  cutting  down  the  said  dike  and  constructing  said 
bridge,  and  the  manner  of  such  taking  and  of  determining  the 
damages  caused  thereby,  and  the  damages  to  those  proprietors 
of  Green  Harbor  marsh  lands  whose  property  is  injured  by  any 
act  done  under  authority  hereof,  if  the  same  cannot  be  agreed 
upon  by  the  said  board  and  the  persons  concerned,  shall  be  the 
same  as  provided  by  chapter  four  hundred  and  seven  of  the  acts 
of  the  year  eighteen  hundred  and  ninety-three,  relative  to  the 
taking  of  land  by  the  metropolitan  park  commission,  and  the 
said  board  shall,  for  the  purposes  of  this  act,  have  the  powers 
conferred  upon  the  said  commission  by  the  said  chapter.  The 
damages,  when  finally  determined,  shall  be  paid  from  the  treas- 
ury of  the  Commonwealth,  and  shall  be  in  addition  to  the  sum 
^of  thirty-five  thousand  dollars  hereby  appropriated. 

Section  3.     This  act  shall  take  effect  upon  its  passage. 


l/CSB   LfBRARV 


